The Supreme Court Finds No First Amendment Protection for Government Employee Speech Pursuant to Official Duties

Consider two Supreme Court cases involving the protection the First Amendment affords to government employees while on the job. In the first, an employee of the Harris County, Texas Constable's office opines to a co-worker that she wishes someone would successfully assassinate the President. In the second, a Los Angeles deputy district attorney argues to his supervisor that a prosecution should be dropped because it relies on evidence obtained from a faulty search warrant. In both cases, the government employees sue after they are disciplined for their respective statements.

If you were told that the Supreme Court had ruled in favor of the government employee in one case, and against the employee in the other, you would probably guess that the pro-assassination speech is unprotected, while the district attorney's effort to correct an apparent injustice receives free speech protection, right?

If so, you'd be wrong.

Just last week, in Garcetti v. Ceballos, the Court ruled against the deputy D.A., in a 5-4 opinion written by Justice Kennedy. And in 1987, in Rankin v. McPherson, the Court ruled in favor of the Constable's office employee, despite the government's contention that such a ruling would permit her to "ride with the cops and cheer for the robbers."

What sense, if any, can we make of the Court's employee speech doctrine?

Protecting Non-Job-Related Speech More: Did the Court Get It Backwards?

In Ceballos,Justice Kennedy drew a distinction that seems to get things exactly backwards. Speech on matters of public concern by a government employee is presumptively protected, unless the speech is made pursuant to the employee's official duties--that is, unless the employee is speaking about what he actually knows best.

In fact, the ruling in Ceballosis not so illogical as it sounds. It rests on two plausible premises: First, that government employers need to be able to exercise some measure of control over what their employees say as part of fulfilling their official functions; and second, that a rule permitting employees to sue over discipline imposed for speech within the scope of their official duties would impose unacceptably high litigation costs.

Whether those premises justify the rule adopted by the CeballosCourt is highly contestable and was, indeed, vigorously contested in the Ceballos case itself, in three separate dissenting opinions. Ultimately, however, the majority and dissenting opinions are like ships passing in the night. They reach different conclusions because they conceive the protection for employee speech as serving fundamentally different purposes: For the majority, the doctrine simply prevents government from leveraging its employment relationship into a tool of censorship; for the dissenters, government employee speech is protected in order to foster good government.

Prior Precedents on Speech by Government Employees

In 1892, while still serving on the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. wrote in McAuliffe v. New Bedford, that a man "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." In this view, the government has no power to punish someone for political speech, but it can offer the reward of a government job on the condition that employees adhere to the terms of their contracts, including those limiting speech. This distinction between government as regulator and government as proprietor--that is, as an actor no different from private-sector employers--lasted for decades.

Modern First Amendment case law, however, rejects the regulatory/proprietary distinction. As Julie Hilden explained in a column following the oral argument in Ceballos, the core principles were set out in the 1968 case of Pickering v. Board of Education. Under Pickering, and as further elaborated in later cases, when a government employee speaks: as a citizen, and on a matter of public concern, his or her speech is protected under the First Amendment if the speech interest outweighs the government's interest, "as an employer, in promoting the efficiency of the public services it performs through its employees."

The judgment whether the speech interest outweighs the government's interest is commonly called the "Pickeringbalancing test." But the crucial question at issue in Ceballosconcerned a threshold issue in the Pickering analysis: whether a district attorney who writes a memo to his supervisor about a case that falls within his official duties is speaking "as a citizen" or simply as an employee.

Speaking "as a Citizen": Why Is the Distinction Significant?

What is the significance of speaking "as a citizen?" (Technically, we should be talking about "persons," rather than "citizens," because aliens lawfully present in the United States have free speech rights too, but the cases imprecisely refer to "citizens," and so I'll use that terminology here.)

The modern cases affirm that government employees do not shed their rights as citizens simply because they happen to work for the government. To give an obvious example, the First Amendment forbids a city from firing or demoting a sanitation worker because, in his spare time, he attends a rally in support of a candidate for public office that his boss opposes.

The cases go further, though. As the majority acknowledges in Ceballos, government employee speech is protected by the Pickeringbalancing test even if it occurs in the workplace. Moreover, the speech can be about matters closely connected to work. As the Court explained in Pickering and reaffirmed in Ceballos, government employees will often be "the members of the community most likely to have informed and definite opinions" about the issues relevant to their jobs.

But the Ceballosmajority drew a line at expression made "pursuant to" the government employee's official duties. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen," Justice Kennedy wrote.

Justice Souter's dissent (joined by Justices Stevens and Ginsburg) took issue with the majority's distinction between the role of citizen and the role of government employee. He cited official advertisements for government jobs--including the Human Resources website of the Los Angeles County District Attorney's Office, where Ceballos worked--in which the government promotes employment opportunities as an opportunity to serve the community. On Souter's view, then, these jobs combine the roles of citizen and employee.

Whistleblowers or Troublemakers?

For the dissenters, the reasons to protect the speech of government employees like Ceballos were clear. Ceballos claimed to have uncovered wrongdoing in the prosecution of a criminal case. By reporting that wrongdoing to his superiors, proposing to turn over the evidence to defense counsel, and urging that the case be dropped, he was discharging his professional duty as a government attorney and serving justice. He was, in short, an internal whistleblower. (Ceballos later went public as well, but the Supreme Court did not address that aspect of the case.)

Well-run organizations--whether in the private sector or the public sector--need whistleblowers to call attention to problems while there is still time to address them. A rule that categorically denies protection to whistleblowers who speak pursuant to their official duties, the Ceballosdissenters argued, will leave government vulnerable to corruption, incompetence, and the dangers of group-think.

Yet one man's whistleblower is another man's troublemaker. Anybody who has worked with a reasonably large number of employees in almost any workplace will have encountered the gadfly personality type. Often well-meaning, such people adopt an oppositional style and blow the whistle incessantly, even long after the organization has made a collective decision to move on. An organization's management needs the ability to discipline such people--even if it is only the mild discipline of not assigning them to work in groups charged with making speedy decisions--in order to function effectively as a team.

Why Not Simply Apply the Balancing Test? The Floodgates Issue

The dissenters in Ceballosdid not deny that government employers often need the authority to make their employees toe the party line. But they did deny that government employers always need this authority. As Justice Stevens put the point: "The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never.'"

Pickering, after all, does not entitle government employees to say whatever they want. Their free speech interests must be balanced against the government interests.

That still wasn't good enough for the Ceballosmajority, however. A balancing test puts the key decisions in the hands of judges, rather than government employers, and even if the judges usually strike the right balance, the possibility of victory in court will induce prospective free speech claimants to challenge many appropriate decisions by their bosses.

Justice Souter, in turn, responded that the lower courts have been operating for years under a rule permitting claims like the one advanced by Ceballos to go forward, and had not been flooded with cases--by his count, an average of 70 cases in the federal appeals courts and 100 in the federal district courts per year present such claims.

That's more than a trickle, to be sure, but Justice Souter also proposed tightening the standard to allow only claims where the employee "speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it."

In addition, Justice Souter thought that the majority itself was inviting litigation over the question of whether particular statements by government employees qualified as pursuant to a given employee's official duties (and thus unprotected) or as outside those duties (and thus protected by the Pickering balancing test).

The Function of Employee Speech Doctrine

The real disagreement between the majority and dissent in Ceballoswas not about the likely effects of various rules governing employee speech. The real disagreement concerned the very point of the employee speech doctrine--the reason it exists in the first place.

For the Ceballosmajority, the speech of government employees is protected in the same way that the speech of every other citizen is. In rejecting the Holmesian regulatory/proprietary distinction, employee speech doctrine ensures that the government does not use its coercive power as employer to squelch the expression of its employees acting as citizens. The Ceballosmajority thus sees employee speech doctrine as about the implications of rejecting the Holmes view, but nothing more.

For the Ceballosdissenters, however, while employee speech doctrine certainly rejects the regulatory/proprietary distinction, it also goes further. The dissenters conceive the relation between government employee and government-as-employer as running parallel to the relation between citizen and government more generally.

The First Amendment protects citizens in speaking their minds because, among other things, free speech is essential to effective democratic government. And likewise, in the view of the Ceballosdissenters, free speech within a government workplace is essential to the effective functioning of that government entity.

The Ceballosmajority does not necessarily disagree with the view that open avenues for the expression of dissenting views will make a government (or private-sector) body effective. But the Justices in the majority don't think this approach is mandated by the First Amendment.

According to the Ceballosmajority, whether to run the government workplace via free-flowing dialogue, or via strict discipline, is simply a policy choice, not a matter dictated by the Constitution. Accordingly, the majority was content to rely on federal and state statutes, rather than the First Amendment, to protect whistleblowers.

Understanding the different perspectives of the majority and dissent in this way does not tell us who's right in Ceballos. But it does explain why it is possible to find the arguments for both sides persuasive, for they address very different questions.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.